Court: Druggists can be liable for failing to warn of risks

An appeals court rules in the case of a man whose wife died of an overdose after druggists filled her prescriptions.

Associated Press
Published June 4, 2005

MIAMI - A Florida appeals court has ruled for the first time that pharmacists can be held liable for failing to warn people about the risks associated with the use of drugs repeatedly or in harmful combinations, even if they are filling doctors' prescriptions.

The 4th District Court of Appeal, reversing a lower court, decided this week that Robert Powers can pursue claims of negligence against two pharmacies - Your Druggist and the Medicine Shoppe - that filled his wife's prescriptions for neck and back pain. Gail Powers died of an overdose.

Pharmacists already must have "general knowledge" of the medicines they dispense, as well as knowledge of the risks they present, the court found.

"Thus, a strong policy basis already exists supporting a pharmacist's duty to warn customers of the risks inherent in filling repeated and unreasonable prescriptions with potentially fatal consequences," Judge Mark E. Polen wrote for the court.

The pharmacies plan to appeal.

Peter Herman, Powers' attorney, said the ruling is "important because from a consumer's standpoint, a pharmacist is probably going to be in the best position to raise a red flag."

Gail Powers, a 46-year-old waitress, died in October 2002 from an overdose of prescription drugs. She had been taking six drugs, including the powerful painkillers OxyContin and Percocet and the antianxiety drug diazepam. These drugs can be harmful if taken together, and some are highly addictive with long-term use, according to the Food and Drug Administration.

In his lawsuit, Powers said the druggists wrongly filled all of his wife's prescriptions without question, even though many were filled within days of previous prescriptions - raising the possibility of dangerous combinations or easy access to too many pills. The lawsuit also named his wife's doctor, a neurologist.

The negligence claims against the pharmacies were dismissed by a trial judge in Broward County who said that, under Florida law, druggists aren't liable if they're filling legal prescriptions.

The 4th District Court of Appeal's reversal of that decision Wednesday gives Powers another chance to pursue his claims. The ruling did not address whether Powers might succeed on the merits of the lawsuit.

Jay Greene, attorney for the Medicine Shoppe, said the decision will be appealed to the Florida Supreme Court within 30 days.

The appeals court, sitting in West Palm Beach, noted that its decision conflicts with rulings issued by the 1st District Court of Appeal in Tallahassee and the 5th District Court of Appeal in Daytona Beach in similar cases. But the judges cited recent cases in Pennsylvania, Arizona, Nevada, Missouri and Tennessee in which courts found that pharmacists have a duty to warn patients, doctors or both about the possible risks of using prescription drugs repeatedly, over a lengthy period or in certain combinations.